Sunday, October 19, 2008

PROP 8 in California, Against Gay Marriage: We Must Tackle the Real Problem!

Whatever happens in the vote in California over banning gay marriage, this problem will be with us forever. If the reactionaries win and ban gay marriage, gay activists will push to overturn it because they can't in good conscience just let it be over. If the proposition is defeated, reactionaries will keep fighting too, because they think their souls are at risk. There is no resolving that problem.

What CAN be resolved is answering this question: Why is the government involved in this?

Remember, what both sides are fighting over is control of the levers of state power to allow or to forbid same-sex marriage. If the state weren't the entity that declares what legal marriage is, then they'd have to fight over something else, and the noise level would go down a lot.

History lesson: Back before the USA was founded, it was taken for granted in Europe (and most of the Colonies) that it was the duty and obligation of the government to declare an official religion, and support that religion against other religions and against irreligion. It was thought to be the government's duty, since the souls of the people/subjects were at risk. The stability of society was at risk: You couldn't just have people believing in whatever they wanted, or in nothing!

Several of the colonies refused to establish and support through taxes any religion, which was a shocking development in the 1700s. People noticed an amazing thing: When the state wasn't picking religious winners, the battle among religions for control of the government evaporated. Religious battles declined in ferocity. People still argued, but since they weren't arguing over who got to control the tax authority and the police to pursue their beliefs, the arguments lacked that degree of fierceness they had for hundreds of years in Europe.

So the USA established a government that stayed out of the religious wars, a radical notion. And we haven't had religious wars here since. So here is another radical idea: How about if the government gets out of the religious wars over marriage?

The state has only one interest in the question of marriage: It's a matter of contract law. We already have well-established history of dealing with contract issues. There are default contracts, there are assumptions and presumptions in contracts, and the state doesn't have to approve the contract or approve the people entering into a contract. They just establish the defaults for all contracts.

We should do this with marriage too. The state already has a contract-law setup when it comes to common-law marriage: If you live as a couple long enough, you have obligations with regard to children and community property similar to those of a formally married couple. No problem.

So let the states establish the contractual defaults for people who declare themselves married (or who enter common-law arrangements). If you sign a marriage contract, then you are subject to the contract laws; your contract can specifically override any given provision of marriage contract law; anything not specified otherwise is handled by the default marriage-contract laws.

This would be called something other than Marriage, to stay out of the religious wars over "defining marriage as...." The contract law here would apply to anyone declaring a marriage, with the State not approving the people contracting, or the contract, or anything else.

Then if you want to get "married" formally, you go to your favorite church or religious institution. They "marry" you. And the various factions can argue over whether they should do that or not. Some churches or religions may refuse to marry two specific types of people; that would be their right. If you don't like it, argue with that church -- leave the state out of it, the state has no power over this topic, it's between you and that religion. If a church does marry people you don't think should have their marriage "sanctified" by that church -- again, go argue with the church, leave the state, and its idiot politicians, out of it.

You can establish your own church to marry people you want that other churches turn away. You can establish some *other* institution that is not a religious church to do the santifying, if you want to dream up something like that. Argue among yourselves. Leave the state out of it -- it's none of their business.

The idea that we should *vote* on who can "marry" whom, the idea that *politicians* get to weigh in on an issue like this -- it's ludicrous! Isn't it about time we applied the wisdom of our 18th-century forebearers to this 21st-century problem? We learned our lesson 300 years ago -- let's remember the lesson!

Otherwise we'll just be arguing about this forever. I aim this lecture especially at the anti-Prop 8 activists, because the other guys will be back, and back, and back, and all they have to do is win once. Better we change the rules of the game.

And I also aim it at those who believe same-sex marriage an abomination: The gay activists will be back, and back, and back, until they win, and then you'll be fighting all over again -- forever. They ain't going away. Better you should change the rules of the game. Win where you can; stop trying to *force* society -- virtue is not imposed by law!

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